Condo Business November 2010

Canada’s Most Widely Read Condominium Magazine

November 2010 • Vol. 25 #7

PM#40063056

Be prepared

Fire safety Disaster planning Condominium security

Take control of your hydro bills

Your electricity bill is on the rise – up to 26% in 2010.

With the provincial government’s introduction of the HST (harmonized sales tax), rates will increase a guaranteed 8% regardless of use. Time-of-use rates are being rolled out, and planned energy cost increases from energy suppliers have already been announced.

As a Property Manager or Condo Board, your options for controlling these increases are limited.

1. Increase Common Area fees.

2. Undertake expensive equipment retro-fits to become more energy efficient.

However, the best option is 3. Empower residents to take control of their energy consumption.

Implement Stratacon’s no-capital cost sub-metering solution.

Since sub-metering monitors and bills each individual unit, residents won’t be penalized for energy they don’t use. Stratacon’s knowledgeable staff will work with you to create simple solutions to meet your needs, from the initial building audit right through to installation and billing.

Stratacon seamlessly integrates into your business to save you both time and money.

Stratacon is the industry leader - a company with the financial strength* and experience to ensure a secure and professional future of energy savings.

Call 905-695-2188 and ask about our new pricing!

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Contents Focus: safety

departments

8

Prepare for a disaster

By Ralph Dunham

29

Marketing City slickers and urban dwellers

12

Everyone has a role in fire safety

By Amie Silverwood

36

Maintenance A guide to community organized wildlife management

18

Security options

By Jonathan B. Silbert

40

Legal Security considerations for boards

22

Are unit owners prepared?

By Amie Silverwood

44

When mediation fails

26

Green takes on another meaning

By Barbara Carss

48

Board policies or corporation rules

52

Management Risk recognition can prevent violence

58

Smart ideas

Your Design, Your Style!

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Proud to be

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Products by Vifloor contribute towards LEED certification Toll free: 1.877.521.9014 Fax: 416.521.9016 Email: info@vifloor.com Vifloor Canada Ltd., Distributors of Shaw Hospitality Group

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editor's Letter

Publisher Steve McLinden Editor-in-Chief Amie Silverwood Advertising Sales Paul Murphy, Sean Foley

Happy holidays

Senior Designer Annette Carlucci Production Manager Rachel Selbie Contributing Writers Ralph Dunham, Jonathan D. Silbert, Barbara Carss, Stephen Dupuis, Brad Gates, Stephen Morrison, Denise Lash, Michael Pascu Subscription Rates

The November

issue is the last

CondoBusiness magazine printed this year and the first issue of 2011 won’t be in mailboxes until March. That’s a long time to go without industry updates or thought provoking articles since condominium management is a 24 hour a day job that doesn’t take Christmas breaks or New Year holidays.

Tech savvy property managers and board members, however, will still have access to new ar ticles and news between issues. Newsletters are regularly sent to subscribers’ inboxes providing breaking industry news and regulation updates. Video reports are another part of regular mail sent out to subscribers. Industry experts weigh in on topics that matter most to them and to CondoBusiness readers in short but informative videos.

And between mail messages, readers are encouraged to visit the website regularly for news updates, new ar ticles and features. CondoBusiness is also active on Facebook and Twitter with social updates pointing friends and fans to useful links and articles on the web.

I hope you’ll visit us regularly online. Have a happy holiday season.

Canada: 1 year, $55; 2 years, $100 Single Copy Sales: Canada: $10. Elsewhere: $12 USA: $80 International: $105 Reprints: Requests for permission to reprint any portion of this magazine should be sent to info@mediaedge.ca.

Circulation Department Cindy Younan circulation@mediaedge.ca CONDOBUSINESS is published eight times a year by

President Kevin Brown Accounting Manager Maggy Elharar 5255 Yonge Street, Suite 1000 Toronto, Ontario M2N 6P4 (416) 512-8186 Fax: (416) 512-8344 e-mail: info@mediaedge.ca CONDOBUSINESS welcomes letters but accepts no responsibility for unsolicited manuscripts or photographs.

Canadian Publications Mail Product Sales Agreement No. 40063056 ISSN 0849-6714 All contents copyright MediaEdge Communications Inc. Printed in Canada on recycled paper.

Amie Silverwood amies@mediaedge.ca

6 CONDOBUSINESS | www.condobusiness.ca

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safety

Prepare for a disaster Disasters come in all shapes and sizes, and usually at the most inconvenient time. Preparing for every potential

By Ralph Dunham

event can be costly, time-consuming, as well as potentially redundant. So how does an organization determine the optimum level of investment in disaster preparedness planning?

Preparedness planning doesn’t contribute to the bottom line, but it will help add protection and value, especially for unit owners.

8 CONDOBUSINESS | www.condobusiness.ca

safety

Return on investment is a commonly u s e d m eth o d to ev a lu ate p ote nti al investments and estimates are often used to predict an investment return, but in many cases the actual return received will not be determined until the investment is closed. For example, the total financial return associated with investing in a rental unit cannot be determined until the unit is sold.

T his is also the c ase with dis aster preparedness planning. The majorit y of t h e retu r n a s s o c i ate d w i t h t hi s preparedness investment is realized after the disaster has occurred and the planning has been invoked. Like life

insurance, most people hope that this return will always be zero due to a lack of triggering.

If there were no disasters then we wo ul d n’t re q uire any p re p are d nes s planning. However, the reality is that disasters do occur and therefore there is a risk for which planning will be required. Risk is defined as the probability of an event occurring times the impact when it does. For example, if the probability of a major flood is one in a hundred years and the impact to the building, if it occurs, is one million dollars, then the risk is ten thousand dollars per year. T he return on any

investment that could completely prevent this potential impact would be positive (theoretically) provided it cost less than ten thousand per year.

It is usually not possible to reduce the probability to zero and it is usually not advisable to reduce the impact to zero — much like a deductible on your car insurance.

An evolving method of assessing the return on any preparedness planning is to evaluate the risk-adjusted rate of return for the associated effort. This will ensure the level of investment is consistent with an individual building’s r i s k p r o f i l e o r a n o r g a n i z a t i o n ’s November 2010 9

safety objectives. It may be better to enhance gaining favour, in many organizations, is ev a c u a t i o n p ro c e d u re s , i f y o u a re to look at the consequences of an event located near a chemical plant, than to instead of the cause. In other words, expend any effor t on how to handle focus on the impact of an ex tended space debris falling on the roof. O f building evacuation instead of what course, there are always some threats caused the evacuation. Likewise, it may that cannot be mitigated through any be more relevant to plan for any type planning efforts, and you don’t want the of destructive event than to develop plan to be a document of unlikely events. procedures for individual causes.

S o how d o you p l an for d is aster H i s t o r i c a l l y, m a n y r e a l e s t a t e without accounting for all the potential organizations have developed response CARMA_CondoBusiness_01-19-2009_CS2--F.pdf 2/3/09 5:41:35 PM causes of risk? A n approach that is procedures based on cause (e.g. fire,

10 CONDOBUSINESS | www.condobusiness.ca

toxic fumes, power failure, etc.) and these are very effective for immediate response to traditional events. There is no disputing, it is difficult to cover all the possible causes of a disaster without creating an overly-complicated plan with a lot of redundant material.

Additionally, these plans often don’t address the longer term impacts of an extended crisis. This is the biggest difference bet ween emergency re s p o n s e p ro c e d u re s a n d d i s a s te r preparedness planning.

Suppor ting a move from causal to consequential planning is the recognition that any planning ef for t must allow for a great deal of flexibility o r re s i l i e n c y. I t i s o f te n b et te r to d eve l o p p ro c e s s o u t l i n e s to g u i d e management than to create detailed p ro c e d u re s w i t h l i m i te d f l ex i b i l i t y.

C ur re nt b e s t p r a c t i c e s re c o mm e n d building a c ap ab le and well - traine d team that can direct the response and recover y ef for t with guidelines that reflect the organization’s values, while allowing for adaptation to the evolving event. By developing org anizational resiliency and management capability, the effort on documenting procedures (which will need to be maintained) is greatly reduced.

O ne imp lic ation of this a p pro a c h is recognition that, during an event, many issues will arise that need t o b e a d d r e s s e d o n - t h e - f l y. M o s t preparedness plans contain repositories o f v a l u a b l e i n fo r m a t i o n a n d t i m e dependent actions that are pre assigned to specific individuals, but there is often no acknowledgement in the plan that unforeseen issues will arise throughout the event that need to be handled quickly by properly skilled personnel. It may be bet ter to pre identify responsibility for issues (e.g. personnel safet y, rumours, building integrit y, securit y, etc.) and develop a process to ensure the issue is quickly assigned to the best person than to develop detailed procedures to be followed in a specific sequence.

Building a capability to quickly identify the issue, assess its potential impact, and assign responsibility for resolution provides a great deal of flexibility and minimizes pre-event planning effort.

Developing this capability for resiliency

safety in a d i s a s t e r r e q u i r e s e d u c a t i o n , training and experience. Fortunately, m a n y ke y i n d i v i d u a l s h a v e n e v e r had to experience a major disaster.

Unfor tunatel y, they have not b een trained in the unique aspects of how to respond to a critical event either.

T his skill is not on the curricula of most management training programs and, in our ver y busy world, of ten d o e s n’ t re c e i v e a n y a l l o c a t i o n o f time throughout the year— but it is imp or t ant. T here is only one thing worse than not having a preparedness plan and that is having a plan with u nt r aine d / inex p e r ie n c e d p er s o nnel responsible for implementation.

If prioritiz ation of planning ef for ts is required, focus on developing a capability instead of documentation.

One method of addressing the requirement for educ ation, training and experience is to conduct regular scenario - based exercises o r d r i l l s . T h e s e s i m u l a te d e v e n t s allow indi v idu als to work to g ether an d b e c o me c o mfor t a b le w ith the challenges associated with a critical eve nt b efo re i t o c c ur s . T hey hel p identify any invalid assumptions and may point out capabilit y exposures, especially if critical par tners are included in the exercise. The objective of a preparedness exercise program should be to continuously improve the strength and ability of the organization to respond. The investment in personnel time is not large (two to four hour exercises are very effective), but will have significant payback and return on investment when required.

Which brings us back to the issue of w h at is an a p pro p r i ate level of investment, and what return or payback on that investment is to be expected?

There are no easy or correct answers to these questions. Each organization or condominium will have a different response. While we would all like to live in a risk-free world and not have to address disasters, we know that this is not possible. We also know that business managers have t wo major responsibilities—grow the value of the organization and protect the current assets. Preparing and planning for a potential critical event will contribute to both of these objectives. The value will

be determined primarily by the unit owners, insurers and lenders. The protection of assets will be achieved through minimizing the impact associated with an event. Particularly in the current financial environment, protecting current assets may be the higher priority. CB Ralph Dunham is a retired Managing Director for Marsh Risk Consulting.

Questions about this article should

be referred to Gayle Mitcham using the above contact information. To assist i n d e t e rm i n i n g t h e n e c e s s i t y ( a n d level) of preparedness planning that is appropriate, Marsh Canada Limited has developed a risk self- assessment questionnaire for real estate companies. This document is available fre e of c h a rg e by c o nta cti n g G ayl e M itc h a m , Vi c e P re s i d e nt a n d B C M Pra cti c e Le a d e r at g ayl e.m itc h a m @ marsh.com or 416 868 2748.

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11/20/07 2:49:14 PM

feature

Everyone has a r

fire safety

12 CONDOBUSINESS | www.condobusiness.ca

feature

role in

Every time there’s a false alarm and the By amie silverwood

fire fighters are called to a condominium in the City of Toronto, the condominium

corporation is fined $350. And yet, false alarms make up a significant number of the calls to which fire fighters respond every day: wasting their valuable time and adding to condominium expenses.

November 2010 13

Feature

Some calls are made by malicious residents who find humour and excitement in pulling the alarm. Some calls are because of mechanical malfunctions or triggered by dirt and humidity. Some calls are even made by building staff who haven’t been trained to know the difference between a fire alarm and a maintenance call on the control panel. But every call is a waste of time and resources and steps should be taken to prevent false alarms and to inform everyone of their role in the case of a fire.

Fire safet y is a serious issue and condominiums are required to update their fire safet y plans yearly and to provide each resident with a copy of the fire safety plan that has been approved for their building. Corporations that fail to comply with this requirement can face fines of one hundred thousand and/ or a year for each board member and proper t y managers can face fines of fifty thousand and/or a year according to Craig Cunningham, District Chief with Toronto Fire Services Fire Prevention and Public Education section.

“There’s a new ar ticle on the fire code now that says the owners are obligated to revise the fire safety plan and review it if need be once every year.

If they don’t, that’s a violation of the fire code. And the penalty is high. And each member of the board of directors can be fined and charged.”

Cunningham has no sympathy for direc tors who aren’t up to d ate on

“

They’ll have to be

trained to a general knowledge level on what constitutes an activated alarm.

the fire safet y requirements since it is their responsibilit y to care for the building and those who live in it. As far as he’s concerned, just as directors are aware of reserve fund requirements, so should they be aware of the fire code requirements since fire safety is much more impor tant because it concerns people’s lives.

“Each individual has care control of the building,” he explains. “Board of directors, a lot of them might not know about it, but it’s there. It’s under the Fire Prevention Protection Act.” The fire code requires all buildings to have an up to date fire safety plan and to train supervisory staff for their roles in a fire. Someone has to be at the door to meet the fire fighters and that person must make sure the lobby and stairwells are cleared of people so that the fire fighters are able to do their jobs.

Be prepared Follow these steps to ensure everyone is prepared to act when the alarm sounds.

Discuss the Fire Safety Plan with residents to make sure everyone has a copy of the Plan that is easy to locate and up to date.

Train all staff members to know their roles.

Make sure those in supervisory positions understand the importance of meeting fire fighters and keeping residents out of the lobby and stairwells.

Discuss the dangers of investigating a fire alarm and how to verify an alarm safely.

Schedule regular maintenance on the alarm system.

If there is an equipment malfunction alarm, have it fixed immediately – the equipment may be compromised.

14 CONDOBUSINESS | www.condobusiness.ca

”

“If under the fire safet y code the concierge is made reference to as a supervising staff, then the owner has an obligation to train the concierge to a certain capacity under the fire safety plan.”

Training the concierge is a step that is often overlooked in condominiums where there is a high turnover rate for concierges or security guards. But it is the board’s responsibility to train those who are allocated roles in the fire safety plan. A well trained concierge can save the corporation a great deal of money by being able to identif y and cancel false alarms.

“I t ’s a l l u p to t h e b o a r d ,” s a y s C unnin g h am , “w h at they w ant the concierges to do under the fire safety plan. If they want them to investigate an alarm, do they go by themselves? What if the alarm is an actual fire alarm? And because they go to the fire floor, they find that there’s smoke on that floor. So do they actually go by themselves? Not a good idea.

“A s a m a t t e r o f f a c t , t h e y c a n probably determine if there is a fire situation upon investigation as soon as they get to the floor or if people are calling about a fire. If it’s a post station, they’ve got to be trained what is an ac ti vation, w h at the zone is, where the floor is, they have to be very familiar with the fire alarm system and how it enunciates where the alarm is.

They’ve got to determine what is a pull station. What does it look like when it is activated? So they’ll have to be trained to a general knowledge level on what constitutes as an activated alarm.”

He cautions boards who may c o n s i d e r g i v i n g t h e c o n c i e r g e to o

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Feature

much responsibility during an alarm. It would be disastrous for a concierge to cancel an alarm too quickly based on his investigation. There are many reasons for fire alarms and some will require investigation even if a concierge does not detect smoke.

“Perhaps a detection device has been accidentally broken or somehow activated because of mechanical, it got hit somehow or it was set off accidentally or it was because of humidity or whatever. There’s

a whole bunch of determinations and you have to be careful what authority you’re going to give them.”

These decisions would be explained during preliminar y discussions while the board is preparing their Fire Safety Plan. A local fire prevention officer would be able to advise boards to prepare a plan that would suit their building and circumstances.

If the concierge is given the authority to investigate the cause of the alarm, he or

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16 CONDOBUSINESS | www.condobusiness.ca

she must make accommodations so that there is a supervisory staff member at the front door to meet the fire fighters. With the variety of tall buildings fire fighters visit, and each building has its own unique fire plan, they need a liaison who knows the building, has the keys and can provide them with any information they need.

“All the fire fighters know about the fire safet y plan is that they’re there for evacuations. They determine what people should do in a fire,” explains Cunningham. “Ever yone is supposed to have a responsibility and everyone has something to do. There’s always going to be someone to meet them there, that’s one of the base things, to have someone there to tell them what’s going on. Because if you think about all the buildings in the Cit y of Toronto, we’re not going to know all the buildings, there are just too many buildings. And buildings aren’t built the same. They’re all different, the lobbies are all dif ferent; ever y thing c an be different in them.”

Every resident of the building should have a copy of the Fire Safety Plan to consult when there’s an alarm. Their first step is to consult the plan and it will give them instructions to inform their decisions.

“They do have an option, it’s called stay or to go, and it’s up to the occupant, given all the information, they’ve got to make a decision. And usually in a high rise building there will be a voice communication system. And in there they’d be instructed as to what to do.”

The Safety Plan goes into effect as soon as an alarm is triggered so everyone must understand their roles and be prepared to act immediately.

“Supervisory staff have duties before we even arrive on what to do. But if you look at the fire safety plan, it tells them whether they should stay or go – what are the basic ground rules for deciding to stay or to go. Sometimes it is safer in the apartment, sometimes it isn’t. It depends where you are in relation to the fire. It depends on how well the building’s been built. It depends on whether all the holes have been filled and there’s smoke migration into the suites. So there’s a whole bunch of factors in play and being prepared is number one.” CB

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safety

18 CONDOBUSINESS | www.condobusiness.ca

safety

Security options T he i ma ge of an old night watchman, walking the

By Jonathan D. Silbert

hallways of

a building with a flashlight in one

hand and an oversized ring of keys in the other, is one that many people think of when they hear the term security. In days gone by, that image made many of us feel safe, knowing that someone was on the lookout while we were sleeping. By today’s standards, however, the old night watchman has worn as thin as the soles on his worn-out shoes.

Modern security has developed in many ways, both manned and unmanned, to provide enhanced protection of people and property in the fast- paced world of the 21st centur y. In the condominium environment, securit y is not only there to detect and deter intruders, but also to provide a wide range of

services for the residents and their guests.

To d a y ’s t e c h n o l o g y p r o v i d e s us with advanced access control systems, developed from the old fashioned card readers, which creates a more effective means of monitoring and controlling activity not only through the front door, November 2010 19

safety

but also to various internal parts of the building. This tells the security guard or proper t y manager which resident has accessed the various facilities, and at what time, which in turn can h e l p t he p ro p er t y m an a g er as se s s which facilities need more attention or equipment, and when is the best time to schedule maintenance.

Modern digital camera equipment, combined with digital recording technolog y, allows for cr ystal clear images of any location. These cameras are often equipped with panning and zoom - in features that allow a human operator to easily identif y a person or vehicle. Many of the older camera systems would not be able to clearly identif y a person unless they stared right into the lens, while the latest technology can provide for clear identification without the person even realizing they have been seen.

Depending on the needs of our clients,

we can also deploy cameras with infrared lenses, or motion sensors.

The computer age has also provided securit y guards with access to a constantly updated resident information database. W hile this may not seem exceptional in and of itself, the addition of the internet has turned this into a power ful tool not only for securit y guards, but for managers and residents as well. For example, a resident can now log onto their own home computer and reserve the building’s party room for an event, paying any necessary deposits online. T his reser vation will then automatically show up for the property manager or administrator to provide t h e n e c e s s a r y au t h o r iz a t i o n . O n c e this is done, it can then automatically create and issue a purchase order, instructing the security firm to provide an extra guard to supervise the party.

All of this can be done with electronic confirmations to all persons, thereby

20 CONDOBUSINESS | www.condobusiness.ca

eliminating the use of paper and helping to keep the building green.

T he inclusion of internet facilities now provides for remote monitoring of camera and recording equipment.

At the same time, this allows an offsite security guard to issue permits and control visitor parking facilities.

No matter how advanced the t e c h n o l o g y, t h o u g h , t h e r e i s n o replacement for a man or woman in a well-pressed uniform manning their post. The security guard puts a warm f a c e o n t h e ot h e r w i s e i m p e r s o n a l nature of building security. These are the people who the residents see daily, an d b e c o me famili ar w ith , as they become an integral part of the building itself. CB Jonathan D. Silbert, MBA is an Operations Manager with G4S Secure Solutions (Canada) Ltd. Contact him at ( 9 0 5) 566-1409, ext. 269.

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safety

Are unit owners prepared?

By Amie Silverwood

T he proper t y manager and the

board have done their part in developing plans in

case of emergencies. They have their procedures set out in writing and know who will perform which roles. But in the case of an emergency, residents will need their own emergency plans and will need a kit that will provide them with everything they need to support themselves for 72 hours. Even if the condo corporation is prepared, are residents prepared?

22 CONDOBUSINESS | www.condobusiness.ca

I n t h e e v e n t o f a n e m e r g e n c y, management will have their hands full.

It is well worth the effort, while making p re p a r a t i o n s fo r t h e b u i l d i n g a s a whole, to remind residents of their own responsibilities. The more residents are prepared, the less likely management’s precious time will be taken up worrying about whether Mr. and Mrs. Smith have sufficient drinking water.

Direct residents to the Public Safety Canada website www.GetPrepared.ca where they will find various publications to direct them through the steps of gathering an emergency kit. But don’t stop there – residents who are not aware of their responsibilities may never c onsult the website. L ay out some important steps, highlighting those that are most impor tant in the individual condominium’s case.

Public Safet y Canada recommends Canadians to take the following steps: k n o w t h e re g i o n a l r i s k s , m a ke a n emergency plan and get an emergency kit. Save residents time by outlining what the management and board have identified as risks and by publishing t h e b u i l d i n g ’s e m e rg e n c y p l a n .

Residents will need to make their own

safety

personalized, individual plans but the building’s plan should be known by all.

Residents and all members of staff should know the evacuation plan for the building and the proper response for various alarm sounds. Those living in high rises should identify the location of stairwell exits and keep all exits free of obstructions. It can be tempting, in small units where storage space is at a minimum, to place items in front of doorways that are used only in case of emergencies. Residents may need to be reminded that this is not safe practice.

R e m i n d re s i d e nt s to avo i d u s i n g elevators during a power outage or an earthquake since elevators will be re q u i re d b y e m e r g e n c y p e r s o n n e l .

People with disabilities should notify their building manager/superintendent of any special needs or requirements, for example, should an evacuation occur.

Residents with special needs have their own responsibilities as well. They should make sure they have the building s u p e r i n te n d e n t ’s n a m e a n d p h o n e number, the number of members who are on the building’s safety committee, the contact names and coordinates of floor monitors, the contact information of those who conduct evacuation drills and how of ten and w hen drills are scheduled.

Ever yone should know the location of the fire extinguishers, the automated ex te r n a l d ef i b r ill ato r u ni t s a n d t h e ox ygen tank and the location of emergency evacuation devices.

R e m i n d r e s i d e n t s t h a t i t ’s t h e i r re s p o n s i b i l i t y to e n su re t h ey h ave enough food, water, and medications to suppor t themselves if they were required to stay in their unit for 72 hours without power or water. And if they have an emergency kit, they must refresh it on a yearly basis by replacing all the food, water and medic ation.

Special considerations must also be made for children and pets.

It is unlikely that ever yone would have taken these steps to be prepared in c ase of a disaster but reminding residents of their responsibilities is a simple process in the condominium’s emergency preparations that is well worth the effort. CB

24 CONDOBUSINESS | www.condobusiness.ca

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safety

Green takes on another meaning

By Barbara Carss

Pictogram signs could soon point the

way

to the exit in many Canadian buildings. The 2010

National Building Code, scheduled for release this fall, calls for the green “running man” image and directional arrows in place of the traditional red EXIT or SORTIE signs.

Pictogram signs could soon point the way to the exit in many Canadian buildings. The 2010 National Building Code, scheduled for release this fall, calls for the green “running man” image and directional arrows in place of the traditional red EXIT or SORTIE signs.

The new format conforms to International Standards Organization (ISO) symbols now commonplace in the European Union and many other countries. National Code developers expect most Canadian provinces and territories will adopt the change, which

26 CONDOBUSINESS | www.condobusiness.ca

would mandate the pictogram sign in new construction and major renovations.

“The Provinces are already aware of everything we are doing in the development of the National Code and we haven’t been hearing objections,” observes Philip Rizcallah, Senior Technical Advisor with the Canadian Codes Centre at the National Research Council. “The Code is coming out in November and we believe within a few months after that many of Provinces are going to adopt it.”

safety

T h e 2 0 10 C o d e w i l l a l s o a l l o w for photoluminescent exit signs – a technology that adherents promote for both safet y and energy conser vation reasons. Photoluminescent signs absorb and store light at levels as low as five lux and , once charged , c an provide illumination for several hours in the absence of light. They can function in combination with conventional or emergency lighting without having to be wired into a power system, and they require negligible maintenance because there are no bulbs to replace.

“From a safety perspective, it is a redundant, fail - safe system. If ever y other system fails, photoluminescent technology will continue to glow,” says Michele Farley, a fire safety consultant and Chair of the advisory committee for the development of the CAN/ULC-S572 standard for Photoluminescence and Self-Luminous Signs and Path Marking S y s t e m s r e f e r e n c e d i n t h e 2 0 10 National Building Code.

Flexibility for fail-safe technology In the United States, jurisdictions like New York City mandate photoluminescent markings in stair wells and /or other passageways that building occupants might have to navigate in emergency situations, and Canadian Code developers predict that path marking systems will be addressed in the next cycle of the National Building Code to be released in 2015. In the interim, CAN/ULC-S572 ensures that any voluntary installations comply with appropriate safety standards.

“It’s important that designers be able to specify products that will meet performance requirements,” Farley explains. “It is opening the door for designers, architects and engineers to find ways to use the technology. Photoluminescent path marking will be a supplement that will be used by designers in ensuring fail-safe buildings.”

Code and safety specialists suggest that, at least initially, most of the new pictogram signs are still likely to be hardwired and illuminated from within. The signs’ dimensions will be similar to traditional EXIT signs and should fit into comparably sized spaces.

However, photoluminescence c an provide more flexibilit y in awk ward configurations because signs can be flush with walls where they may be less likely to be knocked or damaged. The technology is also compatible with Braille and other types of tactile signs that can be mounted in more accessible locations.

“The EXIT sign is where? On top of the door. If you’re blind, that’s not really helpful,” says Rob Brooker, President and proprietor of Signaids, a company specializing in ISO standard pictograms and signs to promote accessibility.

He applauds the National Building Code’s adoption of the running man pictogram, which is in keeping with the Access for Ontarians with Disabilities Act and the United Nations convention on the rights of persons with disabilities. “Every province and territory has agreed to that so Canada, as a nation, is bound to implement it,” Brooker notes.

He advocates the full range of ISO safety related pictograms, which also apply a consistent colour code of green for safety and red for danger – arguing, for example, that it is much easier for anyone to see and grasp the image of a fire extinguisher than to read the letters in vertical order as they now appear on wall-mounted cabinets.

“The whole premise of the ISO signage or a pictogram is to enable people to quickly identify a sign,” Brooker says. “The whole basis is that safety signs all look the same.

Therefore the continuity is there.”

Switchover factors The Canadian Commission on Building and Fire Codes’ rationale for the running man pictogram is largely to harmonize Canadian standards with international trends. However, there are spinoff benefits of greater inclusiveness for people with limited literacy in English or French and potential cost savings for building owners who previously had to source bilingual EXIT/SORTIE signs.

“We are hearing some concerns and one of the issues that has been raised from some of the jurisdictions is that this is going to confuse people,” Rizcallah acknowledges. “We expect people will adapt quickly. There is not much of a learning curve on this.”

The pictogram will create a few more details for building designers to think about, though, since they will have to specify the appropriate directional arrow for each sign – left, right, up, down. Manufacturers will likewise have to produce a wider array of products, and this will also necessitate more inventory administration.

“Our business deals with a lot of distributors. T hey obviousl y would rather stock a universal model,” says Peter Shilling, Engineering Manager with the emergency lighting provider, Beghelli Canada, and a member of an industry advisory committee to the Code developers.

Many Canadian-based companies already supply the running man pictogram or other ISO standard signs if a customer requests, November 2010 27

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but those specially ordered images won’t necessarily comply with the new National Building Code. It mandates a standardized image in specific shades of green and white.

“In Europe, there are probably five or six different ISO running men, so they had to choose one, which is ISO 7010,” Shilling adds.

“Our parent company is in Italy, and the signs in use there are slightly different than what is proposed here.”

Safety experts are also concerned that renovations could create some potentially problematic inconsistencies in signage. It may not be so confusing if an entire floor or multiple floors within an existing building are outfitted with running man signs while other entire floors retain the EXIT signs, but Rizcallah speculates that authorities with jurisdiction will prohibit mixing of the two sign formats when major renovations are conducted on the area of a single floor.

“Any building should tr y to strive for consistency,” Farley advises. “EXIT signs are in the background and we probably don’t think about them that much, but in an emergency situation you need them really, really urgently and that’s not the time you want to worry about clarity.”

Manufacturers foresee continued demand for the traditional EXIT signs so owners/ managers of existing buildings shouldn’t have any imminent worries about finding replacements for individual fixtures. “The general consensus in the industry is that some Provinces won’t adopt it and some may be slow on the uptake. We also sell into the U.S. market, which will still use the EXIT sign,” Shilling says.

Alternatively, building owners/managers might opt to convert completely to the running man pictogram signs as part of a lighting retrofit. The Code also allows for the hybrid option of the running man pictogram and applicable directional arrow with the word EXIT below.

“It will be a process and it will be years probably before we start to see a significant change,” Farley says. “With most code changes, they are like snails and then they are like torpedoes.” CB Fo r m o re i nfo rm ati o n, th e sta n d a rd s referenced in the 2010 National Building Code are: CAN/ULC- S572, Photoluminescence and Self-Luminous Signs and Path Marking Systems and ISO 3864-1 Safety Colours and Safety Signs Part 1.

28 CONDOBUSINESS | www.condobusiness.ca

marketing

City slickers and suburban dwellers The building industry

is well known

for its constant evolution of products and services and that innovation is even coming through in the way the sector news is released, with the RealNet Canada Inc. third quarter market summary being presented first via a webinar, followed by the traditional media release.

By Stephen Dupuis

T h at ’s h ow I fo u n d my s e l f in t h e RealNet C anada Inc. boardroom with RealNet President George Carras, condo guru Barr y Lyon and TREB economist Jason Mercer speaking into a microphone while the information was being webcast right across the country. You gotta love the Internet!

Truth be told, at 6,503 units sold, it wasn’t one of better third quarters on record, but it’s nothing to sneeze at.

For the month of September, we saw the continuance of the trend towards weaker sales of lowrise homes in the

905 regions while the highrise housing market c ontinued to chug along in both the 416 and 905. As a matter of fact, the quarter ended on a decidedly up-note with September highrise sales representing the third-best September results on record!

“A l t h o u g h a t 3 , 7 6 7 u n i t s , t h e quarterly sales performance of highrise new homes was an average result for Q 3 over the last eleven years, monthly results for September and the year to date results offers a different perspective. September sales of 1,658 units were the third highest September performance while year to date sales of 13,994 units were the second strongest year on record for the highrise market,” Carras said.

T h e ex p l a n a t i o n fo r t h e l o w r i s e malaise remains the same. As Carras p oints out , at 8 ,0 5 5 units, low rise new home inventory levels are at near record lows – at the current average pace of sales, there’s but six months of supply on the market. Caught between the rock of rising prices and the hard place of limited choice, buyers are shifting to the highrise market, which accounted for an above-average 61 per cent of new home sales in the GTA during September.

To some degree the 3 5 thousand condos currently under construction November 2010 29

marketing

in the GTA are the result of a shortage of lowrise housing (or â&#x20AC;&#x153;empt y shelf symdroneâ&#x20AC;? as Carras puts it), which make highrise units more appealing due to their attractive price relative to singledetached, semis and townhomes.

Before anyone hits the panic button on lowrise housing, however, letâ&#x20AC;&#x2122;s take a moment to dig a bit deeper into the stats and try to explain this increasing JermarkPIPE_Condo_Apr09.pdf 5/1/09 price gap. This all stems back to the

industryâ&#x20AC;&#x2122;s evolution concept as builders hire to p - notc h arc hitec t s to d esign smaller suites with more livable space â&#x20AC;&#x201C; my friends at BuzzBuzzHome recently showed me a floorplan of a pretty cool two-bedroom suite weighing in at only 480 square feet â&#x20AC;&#x201C; or what I like to call â&#x20AC;&#x153;right-sizing.â&#x20AC;?

The right- sizing going on in the condo market has created a unique 4:00:12 PM illu si o n w h e re by c o n d o b u ye r s a re

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30 CONDOBUSINESS | www.condobusiness.ca

actually seeing average price per square foot increasing slightly, to $493 per square foot, while at the same time the average unit price is decreasing.

How so, you might ask? The answer is that where average unit size has hovered around 8 8 5 square feet this year, it dropped to 8 3 5 square feet with the September product releases.

As a result, buyers looking to invest their savings in a condominium purchase now have more options, with an increase in affordable units!

At a recent forum hosted by BILD, I was told that a 750 -square-foot, two bedroom and two-bathroom unit is now one of the best-selling designs among buyers in the downtown core. Mix that in with buyers from the 905 regions like Markham and Mississauga, and you can derive that units ranging between 400 and 800 square feet have the highest demands in the GTA. For the record, the current highrise price index sits at $ 410,73 0, up 3. 2 per cent from S eptember 20 0 9 but down 3.4 per cent from August of this year, based on the right- sizing trend by highrise builders. The lowrise price index is up 10.1 per cent year/year, and currently sits at $496,133.

But if you think this means buyers are flocking to the City core to get in on the trendy downtown towers, think again! T he 9 0 5 communit y builders have caught on and the normal 80/20 highrise market split between 416 and 905 was actually 71/29 in September, with highrise condo sales in York and Peel Regions (namely Markham and Mississauga) particularly strong.

While September sales in York Region are down to 239 units sold, Peel beat out its 2009 equivalent by more than double. Halton has also added itself to the mix with an impressive growth increase of 83 per cent.

Get used to this trend because with the 4 0 per cent intensific ation rule under the Greater Golden Horseshoe Growth Plan, itâ&#x20AC;&#x2122;s here to stay, which is not a bad thing. CB S te p h e n D u p u i s i s p re s i d e nt a n d CEO of the Building Industry and Land Development Association (BILD). He can be reached at president@bildgta.ca.

Northcan 4 page supplement

Northcan 4 page supplement

32 CONDOBUSINESS | www.condobusiness.ca

design

Northcan 4 page supplement

November October2010 201033 33

management

Northcan 4 page supplement

34 CONDOBUSINESS | www.condobusiness.ca

Condominium Management Re-defined Integrity, Commitment and Care since 1992

November 2010 35

maintenance

A property managerâ&#x20AC;&#x2122;s guide to community organized wildlife management

By Brian Burton

The first step in learning to live with wildlife

is to understand that animals are instinctively driven to satisfy the four basics of life; territory, shelter, food and

water. Unfortunately, in pursuing these necessities they are interfering with our way of life by causing structural damage, health concerns, noises, odours and anxiety.

36 CONDOBUSINESS | www.condobusiness.ca

maintenance To maintain a positive relationship with our urban wildlife we need to appropriately control their access to shelter and food opportunities within our communities.

Even when animals already occupy a den site, they are constantly creating entry holes in other roofs as backup nesting areas. To reduce conflicts, a property and building inspection should be conducted to identify what wildlife attractions exist and what prevention measures should be implemented.

Is food easily accessible?

When wildlife is drawn to continuously available food sources, there are noticeable repercussions to contend with. Increasing numbers of wildlife will migrate into the immediate area to live off the available food. Wanting to stay in close proximity to food they look to establish den sites nearby.

With an increase in animal populations in the immediate area, more intrusions into buildings can be expected.

Occupants should be advised not to feed wildlife since it attracts raccoons, squirrels, skunks, birds, rats and mice. Of even greater concern are the documented cases

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where the feeding of one species has attracted another species, such as coyotes.

Not to be neglected, green bins, garbage cans and dumpsters containing food refuse must be locked shut or kept indoors until the morning of garbage pickup.

Will trees or vines allow animals to climb onto the roof?

When sur veying buildings and their immediate surroundings we need to think like an animal. Raccoons and squirrels will use their remarkable climbing capabilities

Checklist

to scale trees or vines in an attempt to investigate a roof for potential entry points.

To prevent these animals from gaining easy access to the roof, all tree limbs should be cut back three meters from the roof edge.

While raccoons cannot jump, squirrels are acrobats and are able to leap a horizontal distance of approximately two meters. As to vines, they need to be trimmed to 1.5 meters below the overhang. Implementing this approach will eliminate the most common access. Occasionally, determined animals may use the more difficult route of climbing up outside walls and downspouts to get onto the roof.

â&#x20AC;˘ Make food waste inaccessible. â&#x20AC;˘ Refrain from feeding. â&#x20AC;˘ Cut back trees and vines that provide roof access. â&#x20AC;˘ Inspect roofs often and repair weather or animal related damage. â&#x20AC;˘ Consider wildlife-proofing measures for porches, decks, sheds, exhaust vents, roof vents, plumbing mats and chimneys. â&#x20AC;˘ Hire a professional humane wildlife removal company to solve existing wildlife intrusions and to implement wildlife-proofing measures. Contract experienced wildlife technicians to ensure the survival of the animals especially during the baby season.

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November 2010 37

maintenance Can animals get underneath porches, decks and sheds?

Skunks, incapable of climbing, dig under structures that sit directly on the ground.

While raccoons prefer to live in attics from the fall to early summer, they may move to ground level structures when the attic spaces over heat.

To prevent wildlife from getting under a structure requires digging a trench around the entire perimeter, fastening galvanized screen in an â&#x20AC;&#x153;Lâ&#x20AC;? shape configuration and then back-filling the trench.

Are the stove and bathroom exhaust vents protected?

Mostly birds and the occasional squirrel will use wall vents as ready-made nesting boxes. The existing plastic vent cover presents no obstacle whatsoever against animals seeking entry. Once inside the vent pipe starlings will construct large nests,

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38 CONDOBUSINESS | www.condobusiness.ca

sometimes one metre in length, often blocking the air flow. With up to six fledglings defecating in this confined space, breeding insects and obnoxious odours are a most undesirable consequence. An easy solution to prevent these intrusions is to fasten galvanized screen on top of the plastic vent cover. The screen installation must, however, not interfere with the normal functioning of the vent flaps. Warning: Dryer vents should not be screened, as this would cause the accumulation of lint against the screen and inside the pipe, thus presenting a fire hazard.

How often are roof-tops inspected?

In our Canadian climate roofs are exposed to a wide variety of weather conditions. Strong winds, freezing and hot temperatures, heavy rain and snow all take their toll. Furthermore, animals looking for den sites will break off shingles resulting in exposing roof boards to the elements. Conducting a minimum of two inspections per year will reveal areas where the roof repair is needed, thereby avoiding water damage and potential mould. Wildlife has the innate ability to locate and exploit areas where damage went undetected and water has caused the rotting of roof and fascia boards. In this context, eaves troughs need to be cleaned before winter sets in to assure unimpeded water flow away from the building. Twenty per cent of all wildlife entry holes are created where water from clogged eaves troughs has caused the fascia board and overhang to deteriorate.

Are roof vents, plumbing mats and chimneys animal-proof?

T hese struc tural c omp onents were strictly developed from a functional p e r s p e c t i v e . E v e n t o d a y, a n i m a l prevention is not a vital part of their design. Therefore, to make them animalproof they need to be reinforced with galvanized screen covers. The pressing ne e d to se c ure these c o m p o nent s cannot be over emphasized since nearly sixt y per cent of all animals identif y them as an easy point of entry. CB For more information g o to w w w. gateswildlifecontrol.com.

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legal

Security considerations for boards

By Denise Lash

Safety and security is something that

OUR COMMITMENT to our clients coupled with 30 years of experience drives our motivation in developing innovative and proactive property management services.

most of us only think about when we hear about an incident and it is usually at that point that we may wonder about how secure we are in our own homes.

In condominiums, if security is effective, its residents rarely notice it. But when there is a break-in, an assault or some act of vandalism, the board of directors, management and the owners begin to examine their overall safety and security measures.

Part of the problem is that condominium residents need to think about security at all times and not just when a serious incident occurs. How many of us carefully lock the door behind us when we enter or leave a building? Usually, sometimes, never or always?

Based upon each residentâ&#x20AC;&#x2122;s own experiences, some people may be more aware than others of the dangers that could happen. For some residents, security is a priority and may be based on a legitimate concern and in other cases it may appear to be paranoia. Whichever it is, security in condominiums is and continues to be an important issue to address.

When a developer creates a condominium community, it will establish from the outset the level of security offered to the residents. This information is contained in the initial condominium documentation. This could include a security system with video surveillance, security guards or even security patrol officers.

Once the owner elected board is put into place, the new board may decide to make changes to the level of services initially provided by the developer. These changes may result in increased security, reduced

services or even the elimination of certain services.

The Condominium Act provides that the board of directors has the authority and the duty to govern the affairs of the Corporation. This authority extends to matters involving the safety and security of the residents. Although in certain instances the owners may be involved in decision making (depending on the nature of the change) the decision to change any of the services or common elements for the purpose of safety and security, rests with the board of directors.

Questions that are commonly posed by the board of directors considering changes to security are: What is adequate security for our condominium corporation? What level of security is needed to prevent theft, vandalism and ensure that residents live in a safe and secure community?

One of the contributing factors in altering the level of security services is the concern about fees and costs for additional security. The board of directors will have to determine whether the owners are prepared for increases in their monthly fees in order to have a more secure community.

Effective security ideally means that there are security measures in place to monitor the main entries to the building, the parking garage or lot, common areas such as the pool or exercise room and any storage locker areas. Of course no security system is perfect. How much security a condominium has, and how effective it is, will ultimately depend on how much the

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The board of directors will often be called upon to make some difficult and unpopular choices as to what to secure and how.

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residents are willing to pay through their monthly common expenses. The board of directors will often be called upon to make some difficult and unpopular choices as to what to secure and how.

Security cameras are effective for monitoring multiple places and large areas efficiently, 24 hours a day. The mere presence of security cameras is generally thought to act as a deterrent. It is important to appreciate, however, that unless the video feed from the security cameras is being monitored live by security personnel, an expensive proposition, the cameras can do little to deter and prevent criminal acts, such as assault, theft or vandalism, from occurring in the first place. Rather, in most cases, the feed from security cameras is recorded and is only reviewed after the fact in the event of any incidents. This may only be helpful in identifying the culprit and possibly preventing further incidents.

The use of securit y cameras may sometimes expose the condominium corporation to liability if not properly used and where it can be shown that the c o n d o minium c o r p o r atio n was negligent in its use of security systems which caused damage to a person or property. A condominium corporation would not be liable simply because, for example, a security staff member who is monitoring the security cameras fails to see an incident (unless they were negligent and this negligence results in a loss), or because a portion of the property is not monitored by camera, unless the condominium corporation knew or ought to have known that failure to monitor that portion of the property would likely result in a crime occurring and being undetected.

If the board of directors is aware that certain portions of the property are not monitored and believes that there is a need to monitor those portions of the property,

legal

it should take steps to do so. If the board of directors believes that a security staff member is negligent, the problem should be addressed.

In contrast, security guards offer the advantage of real time detection and prevention but are limited in the scope of their coverage. Typically a security guard walks a circuit of the property periodically, varying the route and timing of the rounds to avoid establishing an easily detectable pattern. It is difficult for a single security guard to create a significant security presence given the size of a typical condo property; a high-rise tower and with attached multi-level parking garage. If the security guard also monitors the front desk, the main entrance will be left unattended while the security guard makes the rounds.

Multiple security guards improve the coverage but impact on the costs, which means higher common expenses. Other measures that can be taken are the use of fobâ&#x20AC;&#x2122;s or proximity cards. The movement of cardholders can also be tracked and cards that are lost or stolen can be easily deactivated.

At the heart of any decision being made by a board, is the continued safety and security of the community. The board will often ascertain what security concerns the residents have and will try to determine the best way to address those concerns.

There is no doubt that what is deemed adequate security for one condominium may be considered inadequate for the next.

The key is to learn what the residentsâ&#x20AC;&#x2122; concerns are and determine what works best to satisfy and protect their needs within the community. CB

Denise Lash is a Condominium lawyer with Heenan Blaikie LLP. Denise can be reached at dlash@heenan.ca.

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legal Legal

WHEN MEDIATION FAILS

By Stephen Morrison

Under the

Condominium Act,

1998, most

disputes between condominium boards and unit owners, developers and property managers must be resolved through

mediation and, when necessary, arbitration. Fortunately, common experience demonstrates that, in many cases, these disputes are successfully dealt with through the mediation process. Unfortunately, some are not. When this occurs, the mandatory arbitration provisions of the legislation kick in, sometimes with surprising and serious consequences for the parties.

44 CONDOBUSINESS | www.condobusiness.ca

legal

The mandatory mediation and arbitration provisions were instituted at a time when alternative dispute resolution was very much in vogue. It was presumed by many that these devices would bring about timely and cost-effective solutions to what were often minor disputes, thereby providing condominium boards with effective tools to fulfill their legal obligations concerning the enforcement of the corporation's rules and bylaws and its relationship with the declarant and property management.

The prevailing view was that arbitration was, in general, faster and less expensive than litigation. This assumption requires reconsideration.

Mediation, being a facilitated negotiation process, is, indeed, a very cost-effective method of resolving most disputes, especially when both parties are highly motivated to avoid the costs and uncertainty of having their dispute decided by a neutral third party. The same cannot be said about the mandatory arbitration that follows unsuccessful condominium mediation. Unfortunately, the legislation provides very little guidance concerning the procedural aspects of the arbitration, except to incorporate by reference the provisions of the Arbitration Act, 1991.

While this latter piece of legislation provides a basic rulebook governing the conduct of arbitrations, it leaves a great deal to the discretion of the parties.

Arbitrations can be quicker and less expensive than litigation, when the lawyers on both sides of the dispute use the inherent flexibility of the process, in cooperation with their selected arbitrator, to make it so. Unfor tunately, in my experience, this rarely occurs. Most of the arbitrations that I have conducted in the condominium world follow essentially the same procedural path that would occur if the matter were dealt with in the court system. Typically, the parties exchange pleadings that look very similar to what are produced in litigation, they exchange extensive documents, and they sometimes undertake examinations for discovery.

T he biggest dif ference, however, between arbitration and litigation is that with arbitration the parties must pay the arbitrator and, in some cases, for the arbitration facility, including the services of a court reporter. By contrast, if a dispute is decided in the courts, the state bears the cost of providing the judge, the courtroom and the court reporter. When the dispute is simple and straightforward and the hearing can be conducted in a day or less, these additional arbitration costs may be relatively insignificant. When, however, extensive evidence is called and the case is conducted as if it were a trial, the hearing can go on for several days, or more.

In addition, the arbitrator is required to provide written reasons for the decision rendered. This allows the parties, and

especially the unsuccessful party, to understand the reasoning behind the decision and to be assured that all of the evidence and the arguments submitted on that party's behalf were understood and considered in reaching a final decision. Written reasons also afford the unsuccessful party an opportunity to appeal the decision on a point of law, a step that would be impossible without a formal detailed ruling. But properly crafted written reasons take time and increase the costs.

I have been involved in condominium cases as an arbitrator where the combined costs for the arbitratorâ&#x20AC;&#x2122;s services, the facilities, and the court reporter over a fiveday period exceeded $50 thousand after allowing for additional time to prepare a written ruling. As this cost is typically borne

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legal by the unsuccessful party in the arbitration, who must also absorb his own legal costs and most of the legal costs of the successful party, the total financial burden to the loser can easily approach or exceed $150 thousand. More surprising is the fact that the original dispute involved nothing more complicated than a complaint of ongoing excessive noise. I find it hard to believe that the Ontario legislature ever foresaw that its mechanisms intended to produce timely and cost-effective dispute resolution in the condominium sector would give rise to this kind of burden. I have often been acutely aware when deciding a case, that the impact of my costs award would be more devastating to the unsuccessful party then my decision on the issue itself.

For now, however, the law is the law.

Until the industry successfully lobbies for a change, what can parties do to alleviate this problem? Although arbitration is mandatory, so that neither party can go to court without the consent of the other, there is nothing in the legislation to prevent the parties from agreeing to take their dispute to court rather than to an arbitrator. Where such agreement is not possible, the parties to condominium arbitration should encourage their legal counsel to make every effort to work with each other and with the arbitrator to streamline the process. With reasonable forethought and creativity on the part of the lawyers, this can usually be done without either party weakening its position. One simple example is for the parties to agree that the evidence of their respective witnesses will be tendered by way of a sworn affidavit, so that only the cross-examination will occur live at the hearing. This step alone can easily cut the hearing time nearly in half. Finally, the parties should consider whether they are prepared to dispense with detailed written reasons for judgment. In cases where no appeal is seriously contemplated, this can also dramatically reduce the costs.

Even better, take full advantage of the mediation process to resolve disputes on a mutually acceptable basis and avoid the arbitration process altogether. CB Stephen Morrison is a partner at the law firm of Cassels Brock & Blackwell LLP where he is a member of the Advocacy Group. He serves frequently as a neutral mediator and arbitrator in the resolution of condominium and other commercial disputes.

November 2010 47

legal

Board policies or corporation rules

By Michael Pascu

The Condominium Act, 1998

“Act”)

(the

provides that condominium corporations can pass

“by-laws” and “rules” for specific purposes as set out in the Act, but the Act does not mention “policies” anywhere. What are policies then? Are they legally enforceable, and if so, based on what principles?

In the recent case of Durham Condominium Corporation No. 9 0 v.

Moore, 2010 Ontario Superior Court of Justice (ONSC) 5301, the court was asked to confirm whether certain policies were legally enforceable and further, to comment on the distinction between rules and policies. Although the court ultimately failed to clarify the distinction between rules and policies, it did confirm that policies are legally enforceable, and further, that the board of directors of condominium corporations essentially have wide latitude in fashioning policies because the courts only intervene in situations where the boards had acted unreasonably or oppressively.

The board of directors of Durham Condominium Corporation No. 90 decided, by way of policy, to oblige unit owners to keep patios and decks to the same dimensions as those of the original patios

and decks, and accordingly, not permit any future proposed enlargements or extensions. The respondent unit owners (Carol Moore and Keith Wallace) requested the board’s permission to build a deck.

According to the plans submitted by the respondents, the proposed size of the deck corresponded to the dimensions of the original decks in the corporation, and accordingly, the board approved their request. However, the constructed deck was larger than specified in the plans.

The corporation ultimately brought an application for an order compelling them to remove the overbuilt portion of the deck.

The respondents took issue with the right of the board to enforce the policy.

They argued that the policy, which was contained in a document entitled “Rules and Policies (2008)” was not passed as a rule and should have been passed as a rule in order to be enforceable.

48 CONDOBUSINESS | www.condobusiness.ca

In reviewing the corporation’s “Rules and Policies (2008)”, the court conceded that “there does not appear to be a rational distinction between matters addressed by the “rules” and matters addressed by the “policies”. The respondents argue that the policy regarding deck construction should have been enacted by the Board of Directors as a “rule” under Section 58 of the Condominium Act, which would have allowed them the opportunity to challenge the rule along with other unit holders or seek to have it modified. Now they have no remedy aside from hoping for a benign approach to approval by the Board, which they have been denied.”

The court concluded that the policy was legally enforceable but sidestepped the issue of whether the policy should have been a rule, by stating that “the question of whether something is to be a rule or policy is ultimately a political question to

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legal

“

The remedy for unit owners who oppose a

policy or rule is to run for office and once elected, to enact rules and policies that reflect the views of the majority of unit holders.

be democratically determined under the Condominium Act. The legislation offers no guidance on the categories. The remedy for unit owners who oppose a policy or rule is to run for office and once elected, to enact rules and policies that reflect the views of the majority of unit holders.”

Unfor tunately, although the cour t determined that policies are legally enforceable, it failed to clearly articulate the reasons for its decision. However, upon a review of the comments made by the court, it was clear that the case was fundamentally about whether the board had properly exercised its discretion, under Section 98 of the Act and Sub-section 2(b) of Article IV of the condominium corporation’s declaration, to deny the unit owners’ request to be permitted to enlarge their deck. Accordingly, although it was not specifically stated by the court, the implication was that in order to be enforceable, the board policies must have been related to a matter with respect to which the board had the power to exercise discretion (in this case, the power to decide whether unit owner alterations to the common elements would be permitted, and if so, under what conditions). The court could have used the opportunity to clarify that, unlike rules, board policies are essentially written guidelines as to how a board would be exercising its discretion in making decisions on a specific matter, and that the board must be empowered to make those decisions pursuant to either a provision of the Act or a section of the corporation’s declaration, by-laws or rules.

The court also could have clarified that although a policy c an look like a rule, is not a rule and cannot be a s u b s t i t u te d fo r a r u l e , b u t i t m a y however supplement a rule with a set of additional provisions. It is clear from the court’s reasoning that although the court rather dismissively concluded that

whether something is to be a rule or a policy is ultimately a political question, the court did not in fact consider “rules” and “policies” to be the same. This is because the cour t noted that boards have great latitude in making policies and stressed that the courts should not interfere unless the boards had acted unreasonably or oppressively.

The court even cited with approval Justice Flynn in the c ase of Halton C o n d o miniu m C o r p o r at i o n N o. 315 v. S i d G u c c i a r d i ( U n r e p o r t e d , 15 April 2004), who said: “The Board of Directors of this condominium was elected by the unit owners to administer this condominium, in the best interests of and for the welfare for the whole corporation. It is not for the court to step into this fray.”

Such judicial deference with respect to policies underscores the cour t’s understanding that policies are essentially written guidelines regarding how boards will exercise discretion with respect to those matters over which the boards have decision-making powers. By contrast, b o ard s c annot b e g i ven the s ame deference with respect to making rules because in order for rules to be valid, the subject matter of the rules must fall under the specific purposes listed under Section 58 for which rules may be passed; there is no discretion whatsoever in boards to pass rules that do not strictly comply with Section 58 of the Act. By noting that b o ards have great latitude in making policies, the court also confirmed that policies can indeed b e p owe r ful to o ls in t h e h a n d s of boards. For example, with respect to policies passed to supplement a rule, w here as the r ule is subje c t to the approval of, and can be repealed or amended by, the unit owners (by way of requisitioning an owner’s meeting for that

50 CONDOBUSINESS | www.condobusiness.ca

”

purpose), the policies are not subject to any direct input from the unit owners.

There are essentially only two ways in which a policy can be challenged by a disgruntled unit owner: (a) a legal challenge; and (b) the removal of the directors from the board in the hope that the new board may amend the policy. Both options however offer highly uncertain outcomes and therefore are not resorted to lightly by unit owners.

The legal challenge runs the risk that the court would not interfere unless the board is found to have exercised its discretion unreasonably or oppressively. The second option requires the disgruntled owner to convince the owners of a majority of the units in the corporation to vote in favour of removing the directors, and even if they are removed, there is no guarantee that the new board would amend the policy to the disgruntled unit owner’s liking.

Although the court failed to clearly articulate the reasons for its decision, it did confirm that policies are legally enforc e a b le. A s well, althou g h it s reasoning implied it, the court could have clarified that board policies are essentially written guidelines as to how a board would be exercising its discretion in making decisions on a specific matter, provided that the board is empowered to make those decisions pursuant to either a provision of the Act or a section of the corporation’s declaration, by-laws or rules.

Finally, although the court also failed to draw a distinction between rules and policies, it was implicit in the court’s reasoning that a policy is not the same as, and cannot be a substitute for, a rule, but it may supplement a rule with a set of additional provisions. CB Michael Pascu is a lawyer with Fine & Deo and can be reached at 905.760.1800 x 243.

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52 CONDOBUSINESS | www.condobusiness.ca

Risk recognition can prevent violence

By Barbara Carss

Ontario employers are now expected

to be aware of the risks of violence that their staff may

encounter from both within and outside their organizations. Recent amendments to the Occupational Health & Safety Act that came into force in June 2010 spell out new responsibilities to evaluate hazards and inform workers about their potential vulnerability, some which call for subjective judgement of whether certain individuals pose a threat to others.

“The legislation requires employers to conduct a workplace risk assessment,” explains Cathy Chandler, an Occupational Health and Safety Consultant and Paralegal with Gowling Lafleur Henderson LLP. “Employers have to put measures and procedures in place to address the risks they’ve identified in their assessments.”

Workplace harassment policies and programs are also mandated to ensure that formal procedures are in place for workers to report incidents, and for employers to investigate and deal with complaints.

Although employers aren’t required to proactively assess workplace conditions that could expose workers to harassment, the Ontario Ministry of Labour’s guidance d o cument a d v ises th at unc he cke d harassment may escalate to threats or acts of violence and/or a targeted employee may retaliate violently.

The new rules apply in every provincially regulated workplace in Ontario. Required policies must be in writing and posted in a conspicuous location in all workplaces with six or more employees.

Definitions in the Occupational Health and Safety Act Workplace violence means: • The exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker • An attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker • A statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force against the worker in a workplace that could cause physical injury to the worker.

Workplace harassment means: • Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

Workplace harassment may include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, or offensive or intimidating phone calls.

November 2010 53

management

Assessments Workplace assessments must be updated as circumstances within the workplace change, and findings must be shared with employees, either via the organization’s joint health and safety c o m mi t te e o r u p o n a n e m p l oye e’s request in organizations that do not have committees. Assessments must consider risks that employees might be exposed to due to their job functions, and risks that might relate to specific conditions of the workplace.

Workers in se c tor s w ith g re ater interaction with p otentially volatile or unstable people – such as health care, social services, retail, hospitality, transpor tation and police/securit y – are categorized as generally more at risk. Employees who deal with the public, handle cash or valuables, work non-conventional hours, have a mobile workplace (i.e. from a vehicle) or are isolated on a work site may also be more exposed to risk.

Site-specific threats might arise from the layout, design, lighting levels and

se c u r i t y s e r v i c e s a n d m e c h a ni s m s within the building and /or on the surrounding grounds; other building o c cup ants; or the ambience of the neighbouring vicinity, such as activity on the street, types of businesses in the area, police presence etc.

E m p l o ye r s a re ex p e c te d to t a ke the findings of the assessment and tailor appropriate workplace violence prevention programs. Building owners and managers should also be aware of contract workers in their buildings. If an incident occurs, either or both the contractor and building owner/manager could be held accountable.

“If cleaners or other contractors are coming into your workplace every day and there are hazards they are exposed to, you need to tell them,” Chandler s a y s . “A s p a r t o f d u e d i l i g e n c e , employer companies should also ask for ev id en c e th at c o ntr a c to r s h ave complied with the legislation.”

Workplace assessments could be par ticularly challenging bec ause contractors generally have staff working

o n s e v e r a l d i f fe re n t j o b s i te s . T h e legislation allows for one overarching as ses sment of r isks rel ate d to jo b functions, but also requires site-specific assessment of possible unique risks in each job location. In this, contractors and building owners/managers could likel y share infor mation that would have been gleaned in the site-specific assessments that building management produced for its own staff.

Imperatives, options and interpretation Most elements of workplace violence prevention programs are left to employers’ discretion, but one requirement is mandated: workers must have the ability to summon immediate assistance if they are in a situation where violence has occurred or could o c c u r. C h a n d l e r u r g e s e m p l o y e r s to think through the logistics of this requirement and then implement suitable, reliable technology.

“M any employers haven’t paid enough attention to this aspect of the

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â&#x20AC;&#x153;

Workers must be made aware of potential

risk from people with a history of violence, but employers and supervisors/managers must also be mindful of privacy concerns.

legislation,â&#x20AC;? she maintains. â&#x20AC;&#x153;Itâ&#x20AC;&#x2122;s not enou g h to just h ave p hone ac c es s because that can often be difficult for a threatened person to reach. Employees who work outside or travel for work purposes may not have ready access to a phone. In these circumstances, em p l oyer s m ay w ish to im p lement measures such as a panic but ton, a mobile alarm that workers can wear, radios and/or mobile telephones.â&#x20AC;?

W o r ke r s m u s t b e p ro v i d e d w i t h i n f ormation and instruction on the contents of their companyâ&#x20AC;&#x2122;s workplace

violence and harassment prevention programs. â&#x20AC;&#x153;Depending on the risks identified, training may include recognition of escalating behaviour, de- escalation techniques and conflict resolution,â&#x20AC;?

Chandler suggests. â&#x20AC;&#x153;Employers may also wish to develop lockdown procedures that can be integrated with emergency response and evacuation plans.â&#x20AC;?

The new legislation requires employers and super visors to make judgment calls concerning information about particular individuals who could pose a threat to others in the workplace.

â&#x20AC;?

The legislation clarifies that workers must be made aware of potential risk from people with a history of violence, but employers and super visors/ m an a g er s must also b e mind ful of privacy concerns.

The Ministr y of Labourâ&#x20AC;&#x2122;s guidance document advises that the information should only be revealed when workers can be expected to encounter the violent person in the course of their work and a risk of physical injury is possible.

Employers and supervisors are further cautioned not to disclose more information

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Tr u s t e d P e r f o r m a n c e S i n c e 1 9 7 5 November 2010 55

management

This could be a person on staff or a than is â&#x20AC;&#x153;reasonably necessaryâ&#x20AC;? to protect patient, inmate or customer with whom employees from injury. â&#x20AC;&#x153;An employee doesnâ&#x20AC;&#x2122;t need to be aware s t a f f re g u l a r l y i nte r a c t s . H oweve r, of a personâ&#x20AC;&#x2122;s condition â&#x20AC;&#x201C; schizophrenia, for e m p l o y e r s a n d s u p e r v i s o r s a r e nâ&#x20AC;&#x2122; t example â&#x20AC;&#x201C; but the employer must establish expected to foresee all scenarios in a program as to how an employee would which a person becomes violent and respond to a threat from a person who inflicts personal injury upon a worker. â&#x20AC;&#x153;There is no requirement to is possibly violent,â&#x20AC;? says Brett Reddock, President of REDD KNIGHTS GROUP, proactively source out the information,â&#x20AC;? a firm specializing in security and risk Chandler says. â&#x20AC;&#x153;And there is no legal JermarkHRISE_Condo_Apr09.pdf 5/1/09 4:17:41 PM definition of â&#x20AC;&#x2DC;history of violenceâ&#x20AC;&#x2122;.â&#x20AC;? management consulting.

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56 CONDOBUSINESS | www.condobusiness.ca

Awareness triggers action Ontarioâ&#x20AC;&#x2122;s legislation is unique among Canadian provinces in requiring employers to take note of the potential for domestic violence to intrude into the workplace. â&#x20AC;&#x153;Again, there is no requirement to source out the information, but if an employer is aware or ought reasonably to be aware then he or she has to take every precaution reasonable in the circumstance for the protection of workers,â&#x20AC;? Chandler notes.

The requirement may have particular repercussions for owners and managers i n t h e r e s i d e n t i a l s e c to r. â&#x20AC;&#x153;O f te n superintendents or property managers are informed by residents that there are domestic violence issues in the building.

The presence of a violent person potentially threatens anyone who comes into the building, including staff and contractors, so, once the building management

management

has knowledge of that, it has to have a program,” Reddock says.

P rev a l e nt i nte r p ret a t i o n s of t h e Occupational Health & Safety Act suggest that employees have a corresponding responsibility to inform their employers and/or supervisors if they reasonably believe that co-workers are endangered or harassed. “Workers have a legal duty to report hazards, and violence and harassment are considered workplace hazards.” Chandler affirms.

Thus far, there is no evidence that the Ministry of Labour is actively inspecting for compliance with the new legislation, but it seems likely that inspectors will lo ok for evidence of compliance if/ when they are on site to conduct other inspections, such as those occurring through the Ministry’s well-publicized safety blitzes in the construction and trades sectors. The penalt y for non compliance is up to $25 thousand or 12 months imprisonment or both per offence for individuals (i.e. supervisors) and up to $500 thousand per offence for corporations.

Safety and security experts emphasize that few employers are willfully neglectful of employee safety, but other priorities may bump concerns about violence and harassment off their agendas. The new rules compel attention.

“It requires the employer to make a concer ted ef for t to understand the potential risks and do something about them. By doing that, it makes people safer,” Reddock reflects. “Employers

are also required to share the findings of their assessments with health and safety committees. If the health and safety committee is effective, it is going to make sure the policies and programs are sustained.” CB For more information, see the Ontario Ministry of Labour website at www. l a b o u r. g o v. o n . c a / e n g l i s h / h s / t o p i c s / workplaceviolence.php.

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November 2010 57

SMART IDEAS

Fire survival kit

The Toronto Fire Services recommends a survival kit for tenants of condominiums, readily available if they become trapped during a fire. The following list of items can be purchased for less than $50. Having these items available for emergency use may improve residentsâ&#x20AC;&#x2122; chances of surviving a fire.

2. Duct tape - Tape over

1. Wet towel Place at the base of a door.

door and vent openings.

3. Foil wrap - Use to cover vent openings.

4. Whistle - Use to signal for help.

11. Plastic pail with lid - Use for storing survival equipment. (Fill with water during a fire.)

5. Flashlight - Use in case of power failure, smoke, or to signal for help.

10. Fire safety plan - Have a copy of your building's emergency procedures available.

6. Bright-coloured cloth Hang up in a window, or on a balcony, to identify your location.

7. Ink marker - Use for messages on cloth, door or windows.

9. Washcloth - Place the wet cloth over your mouth and nose to aid breathing in smoke-filled areas.

8. Cotton bedsheet - If smoke is heavy in your room, soak the bed sheet with water and make a tent near an open window.

58 CONDOBUSINESS | www.condobusiness.ca

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